Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102

Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102

The applicants achieved substantial but not complete success and were entitled to a portion of their costs, but their late abandonment of claims and mixed success on issues justified reducing recovery; the proper order was that Mr Prentice pay 70% of the applicants' costs. The Court declined to prevent Mr Prentice from relying on indemnity out of the bankrupt estate because there was no evidence or finding that his defence of the proceeding was improper, unreasonable, extravagant, or outside the proper administration of the bankrupt estate.

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Costs in Bankruptcy and Insolvency Proceeding / Determined on the Papers After Declarations and Judgment in Fewin Pty Ltd V Prentice [2016] FCA 1239
Outcome
The respondent was ordered to pay 70% of the applicants' costs of the proceeding as agreed or taxed, and the applicants' request to disentitle the respondent from relying on indemnity out of the bankrupt estate was declined.
Legal Topics
['costs Following the Event' 'apportionment of Costs' 'trustee in Bankruptcy Indemnity' "creditors' Meeting" 'trustee Remuneration']
['costs' 'bankruptcy and Insolvency'] ['costs Following the Event' 'apportionment of Costs' 'trustee in Bankruptcy Indemnity' "creditors' Meeting" 'trustee Remuneration']

Case Brief

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Procedural Posture

Costs in Bankruptcy and Insolvency Proceeding / Determined on the Papers After Declarations and Judgment in Fewin Pty Ltd V Prentice [2016] FCA 1239

Legal Issues

  1. 1 ['Whether the Court should depart from the usual rule that costs follow the event where the applicants had substantial but not complete success.' "Whether the applicants' costs should be apportioned because claims were abandoned and success was mixed on individual issues." 'Whether the respondent trustee should be disentitled from relying on an indemnity out of the bankrupt estate for his own costs and liability to the applicants.']

Ratio Decidendi

The applicants achieved substantial but not complete success and were entitled to a portion of their costs, but their late abandonment of claims and mixed success on issues justified reducing recovery; the proper order was that Mr Prentice pay 70% of the applicants' costs. The Court declined to prevent Mr Prentice from relying on indemnity out of the bankrupt estate because there was no evidence or finding that his defence of the proceeding was improper, unreasonable, extravagant, or outside the proper administration of the bankrupt estate.

Court Disposition

The respondent was ordered to pay 70% of the applicants' costs of the proceeding as agreed or taxed, and the applicants' request to disentitle the respondent from relying on indemnity out of the bankrupt estate was declined.

Orders

  • ["The respondent is to pay 70% of the applicants' costs of the proceeding as agreed or taxed."]